State vs. Metro clash looms with nondiscrimination bill approval

From the gallery in the Metro Council chambers, Nashville gay and lesbian rights advocates let out a collective cheer last Tuesday when council members voted 21-16, with three abstentions, to make it unlawful for city contractors to discriminate on the basis of sexual orientation and gender identity.

But their victory could be short-lived and, in the end, only symbolic.

Last week’s preliminary approval of Metro’s nondiscrimination ordinance, requiring companies that do business with the city to adopt the same nondiscrimination policy that pertains to government employees, means it will almost certainly clear the council’s third and final vote March 15. Mayor Karl Dean, previously hesitant about endorsing the proposal, has since said he would sign the bill into law.

But lingering in the background is a state bill introduced by Republican Rep. Glen Casada of Williamson County that would effectively quash the council’s action by stripping local governments’ ability to enforce antidiscrimination employment protections explicitly for gay, lesbian and transgender people.

“Their actions — Nashville’s — may appear to them as local, but what Nashville does affects the surrounding communities,” Casada said. “We cannot have a hodgepodge of laws that will hurt commerce and hurt the expansion of business.”

Chris Sanders, president of the Tennessee Equality Project, said regardless of the outcome at the state level, the council’s approval of the bill represents a defining moment for the city’s LGBT community.

“If you’re going to call yourself Music City, you better be about talent in terms of access to employment,” he said. “It would still send that message.”

Nonetheless, Sanders is holding out hope that the state bill, if approved, could later be the subject of a court challenge and determined unconstitutional. And he said there’s “no foregone conclusion” that the state legislation would pass, saying that some Republicans might be wary of overturning local public policy.

That could be wishful thinking.

Christian-right activists working outside the public eye to defeat the new nondiscrimination policy have already pivoted to the looming debate over the state bill.

“Our best bet at this point is making sure the state legislature passes [Casada’s bill],” David Fowler, head of the Family Action Council of Tennessee, wrote in an email to supporters shortly after the council’s vote.

While Fowler’s efforts weren’t able to sway the Democratic-leaning — though officially nonpartisan — council, his message could find a more receptive audience on Capitol Hill. With Republicans enjoying a supermajority in the state House and Senate, most observers, even council members, are predicting the legislation will breeze through the General Assembly.

But Casada’s bill raises an important discussion about the role of state and local governments. When should local governments enjoy the autonomy to enact their own rules? When should the state intercede?

Casada, who lostthe race for House Speaker to Rep. Beth Harwell at the start of the legislative session, called his bill a “broad-spectrum” piece of legislation, which he accurately points out touches on a number of issues. Casada filed the Tennessee Intrastate Commerce Act of 2011 two weeks ago. He anticipates six weeks minimum to push it through the legislature.

“It will, in a lot of regards, mirror the Interstate Commerce Clause that the United States government has on states,” Casada said. “This, in turn, would do that to our local governments.”

If approved, local governments would have to limit antidiscrimination employment protections to cover only race, creed, color, religion, sex, age or national origin. Moreover, local governments would also be outlawed from setting minimum wages on businesses, mandating health insurance benefits and ensuring family leave requirements.

“Just like the federal government doesn’t allow states to have a hodgepodge of local rules which would affect interstate commerce, this bill will do the same,” Casada said. “It keeps all our communities within federal guidelines of a whole host of things — from family leave to living wage — and it keeps all of our local communities homogeneous on those types of policies.”

Council attorney Jon Cooper’s legal analysis on the effect of Casada’s bill is pretty cut-and-dried when it comes to Metro’s nondiscrimination bill. “Whatever the council does would be nullified,” he told The City Paper. In other words, Casada’s bill would be retroactive.

Some Democrats are likening Casada’s legislative endeavor in Nashville to another Republican-led intervention earlier this month, when the General Assembly voted to postpone a potential school system merger between Memphis and Shelby County.

“If you look at all the bills they’ve filed, a lot of them are telling local governments what to do, stepping in other people’s jurisdictions,” said Democratic Rep. Mike Turner of Old Hickory.

“Regardless of how you feel about the [Metro nondiscrimination] bill, somebody in Williamson County doesn’t have any business messing with Davidson County,” Turner said. “I think it’s wrong. This is somebody who says he’s not for big government. He doesn’t like the federal government telling us what to do, but he likes the state government telling local governments what to do.”

Turner said he recently met with Mayor Dean to express his concern over the state bill. He said he hopes Dean will take a stance against the legislation. Contacted Wednesday, Dean’s press secretary did not return comment by The City Paper’s Friday morning press deadline.

Turner also said Williamson County residents rely on Davidson County for utilities such as electricity and water.

“If they’re going to start messing with us, we need to rethink our relationship with Williamson County,” he said.

Harwell, a Green Hills-area resident who is known as moderate in a decidedly right-leaning Republican state legislature, said she hasn’t read Casada’s legislation, but she has talked to the Williamson County lawmaker about his bill.

“His goal, of course, is to not put any kind of restrictions on the hiring practices of private businesses,” Harwell said.

She plans to wait until the bill is in its final form before she offers a stance. Asked whether a state law to explicitly nullify a local ordinance would set a bad precedent, Harwell said “that may in fact be a legitimate concern. We’re always in favor of local governments being in control. But if in fact what the city ordinance is doing has statewide implications — in other words, someone who’s from Williamson County doing business with Metro Nashville — then it does become more of a state issue as opposed to just a local issue.”

The Casada bill played a prominent role on the council floor last week as members deliberated the nondiscrimination ordinance. Councilman Rip Ryman made a motion to defer the ordinance until to June as a wait-and-see approach in deference to the state.

That unleashed this passionate plea by Mike Jameson, one of five council members who cosponsored the legislation:

“If the state legislature, truly in their wisdom, thinks it’s appropriate to deprive cities of autonomy, to tell citizens of every city in the state that you no longer have self-control and self-determination in setting these policies, think of all the other policies we set uniquely and individually here,” Jameson said. “We have unique laws in Nashville on environmental protection, on employment, wage and hour issues.

“If we’re going to just defer to the state and punt to them and let them tell you everything to do, then why are we are?” Jameson said. “Why is there a council?”

Ryman’s motion failed. After the meeting, Jameson said he and other members are trying to find other states with similar legislation to study the potential effects. And he didn’t back down from his criticism of Casada’s bill, saying its approval would create a precedent of “eliminating local city autonomy.”

16 Comments on this post:

By:govskeptic on 2/21/11 at 5:20

Does Chris Sanders, Rep. Turner, and the Metro Council
not think the State has Jurisdiction over these area wide
type laws? All knew this bill was pending in the Legislature
but wanted the Press and some personal attention in
passing it anyway!

By:Captain Nemo on 2/21/11 at 7:28

Where is the cry from the conservatives about Cities rights to rule themselves? They are all the time championing the rights of States, so why are they now telling Nashville they have a nondiscrimination ordinance?

By:imdyinhere on 2/21/11 at 7:40

When Bush and Cheney took office, the Federal government set out to bring the more independent-minded and liberal states to heel. Now, we see states trying to bring their more independent-minded and liberal municipalities to heel.

By:oldhickorytony on 2/21/11 at 8:06

Go for it, Nashville! You're a progressive oasis in the desert! In the end, this backwards tea bagger mentality may take over the state... but it helps for businesses considering moving to Davidson County to know that not all of TN is Cousins Country.

By:cw1230 on 2/21/11 at 9:26

This is ironic:

“Their actions — Nashville’s — may appear to them as local, but what Nashville does affects the surrounding communities,” Casada said. “We cannot have a hodgepodge of laws that will hurt commerce and hurt the expansion of business.”

Yet, Republicans and Tea Party people seem to have absolutely no problem with the hodgepodge of laws here and across that country that negatively impact gay families and couples. That's a-okay, but touch their precious businesses and tell them to stop acting like bullies and they get all bent out of shape.

Oh, and Casada is out of the much more conservative Williamson County. Why not just stick to doing business in your county and with your like-minded friends? Exactly why would they want to do business with gay-loving Nashvillians? Oh, yeah, because it's all about the bottom line.

Here's a little tit for tat, folks: Gay people have been told to keep to their own little areas of the town, the state, and the country, and if we don't like it, move somewhere that's okay with us. You know what...BACK AT YA! Keep your backward ways out of Nashville, and while you're at it, take the Southern Baptist Convention, Lifeway, and all the other Christian businesses with you. Someone more worthy could use those buildings.

To thine own self be true. ~ William Shakespeare

By:Nitzche on 2/21/11 at 10:05

oohh, I am so sorry Nashville is so backwards. I feel sorry for those people who moved here, then found out how backwards we are. If I were you, I would not stand for this bigotry, I would move back to the North east or West coast! Does anybody know how many people are employed at the Southern Bapist Convention and Lifeway? They should put Head Start, NARAL, Human Rights Commission, ACLU,and all the other GOOD businesses in those buildings, plus free rent, free lunches, and a I-phone because they are sooo much better than private businesses that pay taxes and employ people who have private insurance!

By:pswindle on 2/21/11 at 11:07

And we wonder why the young and others are turned off by the church going bigots. If this keeps up, there will be no churches in future years. The young can't understand this type of discrimination. We are taught freedom, but the church says wait a minute, not you.

By:Nitzche on 2/21/11 at 11:34

those poor stupid, ignorant , bigoted church that can't think for themselves! They need rich, smart, enlightened, accepting atheist to do it for them.....ONLY IN AMERICA- Don King!!

By:Loner on 2/21/11 at 11:46

David Fowler's group, FACT, (Fowler's Activist Christian Theocrats?), purports to be doing the work of Christ ; but, according to the New Testament authors, Christ never mentioned homosexuality. Apparently, Jesus, the Christ was not all that concerned by it; so where does Fowler get the heretical idea that the Lord was anti-gay?

Christ claimed that His kingdom, "was not of this world"; in other words, Christ made it clear that His message was not political, but spiritual.

Jesus of Nazareth was not a proponent of theocracy or faith-based governance. On the contrary, Christ admonished us to give to Caesar what is Caesar's and to give to the Lord what is the Lord's. That's a Divine voice advocating for separation of church and state.

Christ’s message was one of love, tolerance and compassion; not a political agenda centered on God, Guns, Gays and “Guvmint”.

Pastor Fowler just doesn't get it. And those Christian theocrats in the TN State House who vote for Fowler's heresy don't get it either..

By:GUARDIAN on 2/21/11 at 12:57

GUARDIAN- San Fransisco started with laws like this. Now you can not do any business in San Fransisco without giving qays preferential treatment. I wouldn't be any business with Nashville if I knew I would be sued by any qay I didn't hire for whatever the reason.

By:Loner on 2/21/11 at 1:46

Guardian, are you predicting that affirmative action for the GLBT community is the next step? If so, please present some evidence to support that...thank you.

By:LizzyD on 2/21/11 at 2:28

Oh, Loner...

I think Pastor Fowler "gets it." So do the rest of them. They know exactly what they are doing.

By:Nitzche on 2/21/11 at 3:24

Raise your hand native nashvillians?

By:not_guilty on 2/22/11 at 8:09

I have not read either the local ordinance nor the state legislation, but this situation reminds me of what the State of Colorado did by amending its constitution to prohibit local governments from enacting gay-friendly measures. The U.S. Supreme Court in Romer v. Evans ruled that that state constitutional amendment violated federal constitutional Equal Protection guaranties, because a mere desire to harm a politically unpopular minority is not a legitimate governmental interest.

By:global_citizen on 2/22/11 at 8:32

"Does Chris Sanders, Rep. Turner, and the Metro Council
not think the State has Jurisdiction over these area wide
type laws? All knew this bill was pending in the Legislature
but wanted the Press and some personal attention in
passing it anyway!"

You've got it exactly backwards, gov. Casada filed his bill on February 7th in reaction to the nondiscrimination bill making its way through Metro Council.

I know being a blowhard is a chore, but you have to keep up with the facts.

By:global_citizen on 2/22/11 at 8:37

"San Fransisco started with laws like this. Now you can not do any business in San Fransisco without giving qays preferential treatment. I wouldn't be any business with Nashville if I knew I would be sued by any qay I didn't hire for whatever the reason."

Guardian, I don't believe that assertion. Or at best I believe your interpretation of it is mendacious. Post the San Francisco ordinance you're referring to so we can compare the actual wording with what you claim.